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Ye and Qui v. Minister of Immigration

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Court/Judicial body:  Supreme Court of New Zealand
Date: 20 July 2009 CRC
Provisions:  Article 3: Best interests of the child Article 12: Right to be heard
Domestic provisions: Section 47(3), Immigration Act 1987: Judicial review of decision of a removal order from New Zealand based on exceptional humanitarian circumstances

Case summary

Background: The Supreme Court heard two appeals concerning the lawfulness of decisions made by immigration officers. The decisions were made during the course of proceedings to deport people who had overstayed their visa but had children born in New Zealand who had acquired New Zealand citizenship at birth. Both cases concerned couples from China whose applications for asylum were denied. In the Ye/Ding case, the couple appealed the refusal to grant them asylum but their appeal was dismissed four years later. In the meantime they had had two children. They made several requests to regularise the position of the family in New Zealand but their requests were denied. The parents were served with a removal order and the father was removed to China. The mother had three humanitarian interviews. The humanitarian interview process assesses the impact of a removal order on the New Zealand children of overstayer parents. The immigration officer conducting the interviews decided to proceed with the removal order. The mother applied for judicial review of that decision, which is the subject of current case. In the Qiu case, the parents were granted temporary residence permits after their request for asylum was denied. When their residence permits expired, they were served with removal orders. They had a child after the mother had been served with a removal order. They appealed their removal order but the appeal was denied. The mother applied for judicial review of the denial. They also had a second child. After the birth of their second child, they were served with removal orders again. The father was detained but the mother was not because she had to care for the children. The father had a humanitarian interview and the immigration officer decided that were no compelling reasons for which he should stay in New Zealand. The Court was asked to determine the effects of the child’s best interests on the decision-making process under section 47(3) of the Immigration Act 1987, which provides that persons who have overstayed their visa may be allowed to remain in New Zealand if they can show, firstly, exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh to remove the overstayer and, secondly, that it would not be contrary to the public interest to allow them to remain.

Issue and resolution: Immigration. Best interests of the child. The Supreme Court held that the interests of the child had to be considered when applying section 47(3). The Court ordered the immigration authorities to reconsider their decision and in particular to consider the best interests of the child using the correct legal basis.

Court reasoning: The Supreme Court noted section 47(3) allows removal orders to be cancelled on humanitarian grounds. The Immigration Act should be interpreted in a way that is consistent with New Zealand’s obligations under the  United Nations Convention on the Rights of the Child (CRC) and in particular the best interests of the child principle in Article 3(1). The Court said that children’s interests are always an important consideration in the decision-making process; but what ultimate effect should be given to them is a matter of assessment against all the other relevant circumstances of the particular case and the specifics of any applicable statutory test. So as to give proper effect to section 47(3), the Removal Review Authority (RRA) should take a liberal approach, within its powers, to requiring or seeking further information if that is necessary to address the interests of New Zealand citizen children. If a removal order has already been issued by the RRA, the immigration officer is not obliged to consider a request for cancellation of that order unless it falls within the section 47(3) criteria. In that case, it should consider cancellation using the humanitarian interview process. The interests of the child can be put forward by its parents in the humanitarian interview process, but where this cannot be done by the parents, immigration officers must take measures to ensure the child’s interests are taken into account. The Court stated that it cannot accept that immigration officers are under no obligation to look beyond what parents advance about their child in a humanitarian interview. This would be inconsistent with Articles 12 and 3 of the CRC. The Court found that in both cases the immigration authorities had failed to consider the interest of the children adequately. In the Ye/Ding case, for example, the immigration officer carrying out the mother’s humanitarian interviews failed to consider the effect that China’s one-child policy could have on the family if they were deported. The Court said that the correct approach was not to consider the best interests of the children on the premise that their parents are deported but rather to consider whether she should be removed from New Zealand in light of the best interests of her children. The Supreme Court asked the immigration authorities to reconsider their decision and to consider the best interests of the child using the correct legal basis in both cases.
Excerpt citing CRC and other relevant human rights [24] This approach is supported by the principle that the Act should be interpreted in a way that is consistent with New Zealand’s obligation to observe the requirements of applicable international instruments and, in particular, in present circumstances, those of the United Nations Convention on the Rights of the Child (UNCROC). New Zealand is a party to this Convention, albeit having entered a reservation concerning children unlawfully in New Zealand. Article 3(1) provides that in all actions concerning children, by public and administrative authorities, the best interests of the child shall be “a primary consideration”. A primary consideration does not mean the primary consideration, much less the paramount consideration. [25] It is appropriate, in the light of New Zealand’s obligations under art 3(1), to interpret the relevant provisions of the Immigration Act so that the interests of New Zealand citizen children are always regarded as an important consideration in the decision-making processes. The words “a primary consideration” in art 3(1) do not denote how this consideration ranks against any other relevant consideration such as the public interest. The child’s interests are always important; but what ultimate effect should be given to them is a matter of assessment against all the other relevant circumstances of the particular case and the specifics of any applicable statutory test. [42] These references to children are very significant. It is important for immigration officers to ascertain to the extent they can whether the child will leave with the parents, or stay in New Zealand. If the child is to leave New Zealand, the immigration officer must assess the nature and extent of any problems the child may face if returned to the parent’s home country. If the child is to remain in New Zealand without the care of his or her parents, it is important for the immigration officer to consider who will care for the child, and the nature and extent of the difficulties the child may face in remaining in New Zealand without parents. These considerations bear on whether the overstayer parent should be removed to his or her home country. They should be addressed as an important ingredient in the making of that decision. [51]    What we have outlined is consistent with art 12 of UNCROC which requires that in all matters affecting them, children who are capable of doing so must have the right to express their views freely, and that the childrens’ views should be given “due weight” in accordance with the child’s age and maturity. [52]    The concept of due weight when read with art 3’s reference to the interests of children being a primary consideration, reinforces the view that it is not necessary, in terms of international norms, to give the interests of children, at least in the present context, paramount weight. That, as Glazebrook J pointed out, would be likely to mandate the outcome of most cases in a manner which was not necessarily consistent with the need to bring to account all other relevant considerations. [53]    The right of children to express their views freely is appropriately recognised in ordinary circumstances by expecting and, if necessary, assisting parents to convey to the decision-maker the views and circumstances of their children. But, if there is good reason to believe that the childrens’ views or circumstances will not be or are not being adequately conveyed by the parent(s), the procedures earlier indicated will give appropriate effect to the right referred to in art 12. As the present cases turn on other issues it is unnecessary to examine whether there was any failure to observe the necessary approach in the particular circumstances of each case. Notes: The decision has been effectively reversed by the Immigration Act 2009, which has replaced the Immigration Act 1987. In section 476(6), the new legislation provides that officers must have regard to any relevant international obligations. CRIN Comments:  CRIN believes that this decision is consistent with the CRC. As noted by the Court, States Parties to the Convention have an obligation to ensure that the best interests of a child must be a primary consideration in all proceedings that concern them. The interests of the child may be represented by a parent, but children also have the right to be heard. Citation:  [2009] NZSC 76; [2010] 1 NZLR 104 Link to Full Judgment: This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice. Promotional Image:  Countries New Zealand CRIN does not accredit or validate any of the organisations listed in our directory. The views and activities of the listed organisations do not necessarily reflect the views or activities of CRIN’s coordination team.